Supervision law and legal supervision
Definition of care law
Many people know the word “incapacitation”, which always has something threatening and negative attached to it. Even patients who, for whatever reason, are "cared for" are often afraid of being incapacitated and not being able to make their own decisions.
When is someone placed under supervision?
All adults who are in need of help due to a mental illness or mental, emotional or physical disability and who can no longer fulfill their "life's affairs" have the right to a supervisor.
Life matters are understood to mean very different areas such as taking care of one's own health, dealing with authorities, financial matters, etc.
Typical mental illnesses for which legal care may be necessary are e.g. Addiction, dementia, severe personality disorders (e.g. borderline disorder) or psychoses.
It is also not uncommon for childcare to be set up for people with intellectual disabilities.
What is in the BGB?
According to §§1896 ff. BGB, an appointed supervisor can only act in a supportive manner by exercising a right of representation for the well-being of the supervised person. This means that there is no incapacitation and that the person being cared for remains legally competent.
However, this no longer applies when Section 1903 BGB comes into force. This paragraph deals with the incapacity of the person concerned if he concludes business to his disadvantage. This can happen, for example, with bipolar disorder during a manic phase. In such a case, the supervisor receives a reservation of consent in the event of proven legal incapacity, so that the supervised can only conclude extensive contracts with the consent of the supervisor in order to counteract unfavorable contracts.
What is the reservation of consent in custody law?
The guardianship court can issue an additional order to a guardian for a reservation of consent in accordance with Section 1903 of the German Civil Code (BGB) if there is a significant risk to the person or property of the guardian. This means that the supervisor has the ability to restrict the legal capacity of the person being cared for if the court finds the latter to be incapable of doing business because their own assets have been wasted due to illness or disability.
How is support initiated?
Supervision is only established when the supervisory court receives a suggestion to initiate it. The supervision court is part of the local district court.
Theoretically, every person (relatives, attending doctor, social worker, but also neighbors) can encourage the establishment of care.
In order to determine whether the facility is actually useful and necessary, such a suggestion is always checked. Such an examination is always accompanied by a judicial discussion (a so-called hearing) in which the patient is given the opportunity to comment on the suggestion. If he is unable to comment on the matter due to illness, a guardian ad litem will be appointed to assist him. This is a legally trained person who speaks for the patient and their concerns. He tries to get the best possible overview of the patient's situation by talking to him, his doctor and, if possible, relatives.
Furthermore, a medical report must be obtained from the court in which the medical necessity for the establishment of care is explained. Such an expert opinion can only be given by "a doctor experienced in psychiatry". During the assessment, the patient has the right to have someone they trust be present.
Only when the court has made a comprehensive picture of whether and, if so, in which areas of life help is necessary, does the responsible judge alone decide whether to set up supervision.
A supervisor is then assigned by the court. In principle, it is also possible to take on care tasks as a relative of the patient. If this is not possible or is not desired, professional, full-time supervisors are assigned.
Every person who is ultimately placed under care has the right to appeal against this decision.
Supervision is always set up "on a temporary basis". This means that, on the one hand, the care ends when the reasons that initially led to the initiation of the procedure no longer apply.
On the other hand, there must be a review of the need to maintain care in certain periods of time (usually 6 months for diseases with a good prognosis).
What does a supervisor do?
Officially, a carer is the legal representative of the patient being cared for. However, this expressly only applies to the life issues listed by the court. A person who is obviously overwhelmed with administrative procedures and official tasks (e.g. health resort application, unemployment benefit, etc.) would get a supervisor in this area of life, but would still have full control over his assets.
If a patient is under care in the point of "health care", the caregiver can, against the patient's wishes, e.g. determine a hospital stay. However, he cannot e.g. determine or influence the patient's financial affairs.
Basically, the law stipulates that a caregiver should coordinate all decisions with the patient. If a patient acts "dangerous" for his life or his assets in matters in which he is being cared for (e.g. caring for his own health or managing his own property), the carer can order a so-called "reservation of consent" . At this point, the patient's independence ends. His decisions are reversed or nullified.
Other classic fields of support
Care for dementia?
This is e.g. extremely important when a patient with the onset of dementia makes wrong business decisions that can threaten their existence.
An external assessment is often complex and not always easy.
It is easy to imagine that such reservations of consent can often lead to disputes because the patients feel that they are being “patronized” to a high degree.
What is an "asset provision"?
Wealth care can be one of the duties of a guardian if, for example, the court decides that a person does not manage their own money in their favor due to their underlying illness or disability. It can happen that a person with bipolar disorder in the manic phase concludes contracts that they would not otherwise have agreed to. Even with depression, the lack of drive that often goes hand in hand with the illness means that money transfers are not made, which can also lead to financial and legal problems.
If a supervisor is therefore commissioned with an asset protection obligation, the supervised person is not completely denied access to his own assets, so that he is not completely incapable of doing business. It is still possible to buy basic things that are important for a living. This applies to grocery shopping, for example. If it is a question of larger purchases or luxury goods, the supervisor must be involved in the decision and can invalidate a purchase without consent. However, a supervisor is legally obliged to make a decision in the interests of the supervised person.
The main task of the supervisor is to protect the financial interests of the supervised person. This also means that he takes care of the income from sales or rental income as well as expenses such as claims by the landlord or the bank.
What does "accommodation" mean?
The term placement describes a measure in which a person is deprived of their liberty because they are limited in their judgment due to their illness and would injure themselves or others without the measure. Most people with mental illness are placed in the psychiatric department of a hospital, but they can also be placed in a home or apartment. The space in which the inmate can move is severely restricted and controlled for self-protection. If the medical requirements for accommodation are no longer met, accommodation may also have to be canceled prematurely.
Every person who is no longer “capable of giving consent” and is admitted to a closed ward against his will is forcibly placed. Before the law, this is formally a significant violation of the patient's rights. For this reason, only the considerable endangerment of the patient or by the patient can lead to such a coercive measure.
Except in an emergency, any forced placement must be approved in advance by the court. An emergency in this context is e.g. acute risk of suicide or acute aggressive behavior. In Germany, the period in which a person can be temporarily detained against his will until there is a judicial hearing varies between 24-72 hours.
Similar to the initial establishment of care, a medical report must also be drawn up for every forced placement.
Basically, the supervisor is indispensable for placement, as he has the task of submitting an application for placement or for its end in good time. If there is no supervisor yet, a supervisor can be appointed temporarily. If there is imminent danger, immediate temporary accommodation may also be possible, but this must be checked by the local court as soon as possible.
Forced treatment
In Germany, the period of time in which a patient can be detained against his will without a judicial hearing has taken place varies between 24-72 hours.
In principle, all types of examinations and therapies may only be carried out on people who have given their consent. As a prerequisite for such an ability to give consent, the legislature provides that a patient can overlook the scope of medical treatment or its refusal.
Even a carer cannot determine compulsory treatment if the patient being cared for is capable of giving consent from the doctor's point of view.
Example:
A patient with chronic alcohol addiction is forcibly taken to psychiatry by his or her carer because there was an acute risk of suicide. During the 3-week stay in the closed ward, the patient showed clear signs of cancer. The ward doctor now recommends various diagnostic measures. The patient refuses this. Since he has already been physically detoxified at this point and is therefore able to give consent from a medical point of view, he has the right to refuse these examinations, even if his supervisor thinks differently about it.
A complicating exception is the case that there is already care for a case or “life matter” under discussion because this has already occurred in the past.
Examples of this would be intravenous medication in the context of a chronic illness such as schizophrenia, in which the patient no longer takes medication in the acute stage, for example, or belt securing at night because a patient with dementia has already fallen out of bed and injured himself several times due to physical restlessness. To clarify whether a patient is capable of giving consent or not, treating non-psychiatrists should arrange psychiatric consultation examinations in case of doubt.
Also read: Care levels in dementia
However, the situation is different for emergency treatments. For example, if a patient is passed unconscious for medical treatment, the first doctor alone decides on the measures to be taken.
Legal specifics
The court cannot order a reservation of consent for all decisions.
In the case of marriage or the drafting of a will, the patient initially retains his or her personal will. Of course there are exceptions here too. However, these do not fall under the supervision law.
Even sensitive issues such as forced sterilization (e.g. in the case of frequent unwanted pregnancies), termination of pregnancy or a forced change of residence are not in the hands of the carer.
Online advice
Do you have any questions about repayment law?
We recommend Mr. Ralf Kaiser - Lawyer from Bielefeld
Where can I get the brochure on care law and the power of attorney?
The Federal Ministry of Justice and Consumer Protection (BMJV) offers brochures both in printed form and online. The individual ministries for social affairs in the federal states in Germany also offer brochures for extensive information.
There is no longer any guardianship!
At the beginning of 1992, the new care law replaced the previous provisions on guardianship. The idea behind this reform was to only help the patient in matters in which he had difficulties and otherwise to maintain his independence.
In the course of the following years there were additions. In addition to the actual right to care, additional opportunities were created to help people.
In addition, so-called powers of attorney can now also be granted, so that supervision no longer has to be set up. A patient in a state of physical and mental health can declare these powers in advance. The authorized representative is subject to the same legal provisions as a supervisor, but, unlike a supervisor, is not commissioned by the court.
